NEWS
09/06/2016 16:19 EDT | Updated 09/07/2017 01:12 EDT

B.C.'s health-care shortcomings violate patients' constitutional rights: lawyers

VANCOUVER — British Columbia shouldn't be allowed to bar patients from taking action privately to meet their own medical needs if the government is failing them in the public health-care system, a court has heard.

Peter Gall, a lawyer representing both a group of patients and the Cambie Surgery Centre in Vancouver, told B.C. Supreme Court on Tuesday that the province's inability to provide its residents with timely access to health care violates their constitutional rights and can lead to prolonged suffering.

Easing restrictions on private health-care insurance for core medical services, currently banned by provincial law, would free up resources and shorten wait times by providing a "much-needed safety valve" for the public system, he said.

"The government cannot prohibit people from privately meeting their own health-care needs if they're not being met in the public system. It's really that simple and straightforward," Gall said, speaking before a Vancouver courtroom packed with more than 100 people.

"That's what this case is about. It's about giving effect to the constitutional right of British Columbians to protect their own bodily integrity."

The lawsuit challenges the province's Medicare Protection Act, which limits private health coverage to a list of non-necessary procedures and prevents doctors from operating at the same time in both the public and private systems.

Currently, a physician must opt out entirely of the government system in order to be allowed to charge privately for publicly covered services.

Gall said the government's approach of rationing access to treatment as a means of managing health-care costs, for example restricting operating times, wastes the expertise and availability of doctors who are already on hand and able to perform the procedures.

"The bottom line, beyond any dispute, is that wait lists are getting longer not shorter and that the government is doing worse in meeting its own targets and not better," he told the court.

"Individuals suffering unnecessarily on wait lists is not an exceptional occurrence," he added. "It's widespread, it's unavoidable and it's the expected result of rationing these services."

There's also no evidence that a private system would harm the public system, either by siphoning away resources or lengthening wait lists, Gall said.

Lawyers for the B.C. government declined comment, though B.C. Premier Christy Clark said at a separate news conference that the province has a legal obligation to defend universal medicare.

"We're doing that and we'll see what the court decides," she said. "Both sides are making compelling arguments."

Dr. Brian Day, medical director of the private surgery centre that launched the legal action, has long campaigned for the introduction of a hybrid health-care model, which he says resembles the European systems that receive higher grades in international health-care rankings.

"What we're fighting for is a system with no wait lists, like Switzerland and Germany and Belgium," Day said, speaking outside the court. "Change has to happen to make this system better."

The Canadian system is unfair because it forces patients to endure gruelling waiting times, which often lead to poorer health outcomes, he added.

Health costs are rising at double the rate of provincial health-care spending, Day said.

"Something has to give."

The BC Health Coalition and Canadian Doctors for Medicare, both interveners in the case, say Day's legal challenge could erase medicare as residents know it and create a two-tiered, U.S.-style health-care system.

Gayle Duteil of the B.C. Nurses' Union also opposes Day's case and called on the government to increase public-health spending.

"This is about public health care, the jewel of Canada's health-care system, a core value of our society, and we have to defend it," she said.

The trial is expected to run until at least February of next year.

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